The opinion is 8-1. Sotomayor for the majority, would affirm the 5th Circuit’s dismissal of the writ.
In this case, the Court of Appeals judge granted a COA that identified a debatable procedural ruling, but did not “indicate” the issue on which Gonzalez had made a substantial showing of the denial of a constitutional right, as required by §2253(c)(3). The question before us is whether that defect deprived the Court of Appeals of the power toadjudicate Gonzalez’s appeal. We hold that it did not. This Court has endeavored in recent years to “bringsome discipline” to the use of the term “jurisdictional.” Henderson v. Shinseki, 562 U. S. ___, ___ (2011) (slip op., at 5). Recognizing our “less than meticulous” use of theterm in the past, we have pressed a stricter distinction between truly jurisdictional rules, which govern “a court’sadjudicatory authority,” and nonjurisdictional “claimprocessing rules,” which do not.
Scalia dissents, and would reverse, finding that the 3-judge panel lacked jurisdiction, which would have the effect of dismissing the writ (so it’s not really a dissent).
The obvious, undeniable, purpose of 28 U. S. C. §2253(c) is to spare three-judge courts of appeals the trouble of entertaining (and the prosecution the trouble of defendingagainst) appeals from the denials of relief in habeas and §2255 proceedings, unless a district or circuit judge hasidentified an issue on which the applicant has made asubstantial showing of a constitutional violation. Where no such constitutional issue has been identified, an appealon other, nonconstitutional, issues (such as the statute of limitations issue that the Court decides today) will not lie.
Today’s opinion transforms this into a provision that allows appeal so long as a district or circuit judge, for whatever reason or for no reason at all, approves it. This makes a hash of the statute. The opinion thinks thisalchemy required by the Court’s previously expresseddesire to “‘bring some discipline’ to the use of the term‘jurisdictional,’” ante, at 5 (quoting Henderson v. Shinseki, 562 U. S. ___, ___ (2011) (slip op., at 5)). If that is true, discipline has become a code word for eliminating inconvenient statutory limits on our jurisdiction. I would reverse the judgment below for want of jurisdiction.
It seems Justice Scalia adopted the argument of his former clerk–and my former Prof–Jonathan Mitchell, SG of Texas.
Its basis for proceeding in this fashion is the remarkablestatement that “[a] defective COA is not equivalent to thelack of any COA.” Ante, at 8. That is simply not true withrespect to a significant defect in a legal document. Would one say that a deed which lacks the words of conveyance is not equivalent to the lack of a deed? Or that a passportwhich lacks the Secretary of State’s affirmance of the bearer’s citizenship is not equivalent to the lack of a passport? Minor technical defects are one thing, but a defectthat goes to the whole purpose of the instrument is something else. And the whole purpose of the certificate-ofappealability procedure is to make sure that, before a casecan proceed to the court of appeals, a judge has made the determination that it presents a substantial showing of the denial of a constitutional right. To call something avalid certificate of appealability which does not contain the central finding that is the whole purpose of a certificate of appealability is quite absurd. . . .
What began as an effort to “‘bring some discipline’ to theuse of the term ‘jurisdictional,’” ante, at 5 (quoting Henderson, 562 U. S., at ___ (slip op., at 5)), shows signs of becoming a libertine, liberating romp through our established jurisprudence.
Soto and Nino spar a bit.
7The dissent’s insistence that there is “no practical, real-world effect” to treating this rule as mandatory, post, at 4, ignores the real world.Courts of appeals regularly amend COAs or remand for specification ofissues, notwithstanding the supposed potential to “embarras[s] a colleague.” . . .
Nino says no-no:
6The Court’s claim that “Torres involved . . . a different textual, contextual, and historical backdrop,” ante, at 13, n. 8, does not withstand scrutiny. First, consider the “textual backdrop.” The Court cannot really believe that Rule 3(c)(1)’s statement that a notice of appeal “must. . . specify” the appealing party is “ ‘clear’ jurisdictional language,” ante, at 7, while §2253(c)(3)’s “shall indicate” the issue or issues is not. If it did, it would say as much, since that would readily distinguish Torres. And then consider the “contextual” (whatever that means) and “historical backdrop.” Each provision, in mandatory-but-not-jurisdictionallanguage, specifies what another document, itself jurisdictional in lightof statutory text and history, must contain. The two cases are, of course, literally “different,” ante, at 13, n. 8, but not in any legally relevant way.
And Sotomayor punches back twice as hard.
8The dissent claims that we fail to give stare decisis effect to Torres. Post, at 10. Setting aside the fact that Torres involved an unrelated Federal Rule featuring a different textual, contextual, and historicalbackdrop, the dissent notably fails to grapple with—indeed, its opinionis bereft of quotation to—any supporting reasoning in that opinion. That reasoning is simply not applicable here.
Scalia is not amused.
1The Court suggests that I “ignor[e] the real world,” ante, at 11, n. 7, in which litigants and courts have taken steps to correct a defective COA. But these actions are unsurprising in a world in which there wasthe possibility that this Court would treat §2253(c)(3) as a jurisdictionalrequirement and a court of appeals had already done so. The New World of the Court’s making, in which it is certain that an issuingjudge’s failure to identify any issue justifying a COA will not have jurisdictional consequences, is yet unexplored.
This conclusion is tight:
Terminology is destiny. Today’s holding, and the erosion of our prior jurisprudence that will perhaps follow upon it, is foreshadowed and facilitated by the unfortunateterminology with which we have chosen to accompany ourcampaign to “bring some discipline” to determinations ofjurisdiction. We have said that the universe of rules placing limitations upon the courts is divided into (1) “claims processing rules,” and (2) jurisdiction-removingrules. Unless our prior jurisprudence is to be repudiated,that is a false dichotomy. The requirement that the unsuccessful litigant file a timely notice of appeal, for example, is (if the term is to have any meaning) a claimsprocessing rule, ordering the process by which claims areadjudicated. Yet as discussed above, that, and all procedures that must be followed to proceed from one court to another, have always been deemed jurisdictional. The proper dichotomy is between claims processing rules that are jurisdictional, and those that are not. To put it otherwise suggests a test for jurisdiction that is not to be found in our cases.9
And Scalia admits error!
9It may well be that what I have called a false dichotomy was indeedmeant to revise our jurisprudence. In Kontrick v. Ryan, 540 U. S. 443, 455 (2004), we said by way of dictum the following: “Clarity would befacilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personaljurisdiction) falling within a court’s adjudicatory authority.” Unless an appeal lacking a timely filing of a notice of appeal can be considered one that falls outside the appellate court’s “subject-matter jurisdiction”(which would be an odd usage), Kontrick’s dictum effectively announced today’s decision, the overruling of Torres and Browder v. Director, Dept. of Corrections of Ill., 434 U. S. 257 (1978), and the elimination of jurisdictional treatment for all procedural requirements for appeal. That the announcement has not been heeded is demonstrated byBowles v. Russell, 551 U. S. 205 (2007) (decided after Kontrick), which (over the dissent of the author of Kontrick) reaffirmed Browder. I confess error in joining the quoted portion of Kontrick.
For purposes of FantasySCOTUS, I am scoring Scalia as an affirm. He dissented, but for all-intents-and-purposes he agreed that the writ should be dismissed, albeit on different grounds (a lack of jurisdiction).